Judith Collins
The Justice Minister has concerns about the report she
received three months ago dealing with David Bain's
compensation claim.
Retired Canadian Supreme Court judge Ian Binnie came to New
Zealand in July to assess Mr Bain's claim for compensation
after his wrongful imprisonment, and Judith Collins received
his report in early September.
Cabinet will ultimately decide whether to pay Mr Bain.
Mrs Collins was supposed to release her decision about the
claim before Christmas, but Prime Minister John Key told
Newstalk ZB this morning that was now unlikely.
"I think it's a recommendation she doesn't agree with, or at
least has concerns about."
Mr Bain had served almost 13 years of his minimum 16-year
life sentence when the Privy Council quashed his convictions
in 2007 and ordered a retrial. He was acquitted after the
three-month retrial in Christchurch in 2009.
Former justice minister Simon Power chose an overseas judge
to examine Mr Bain's application for compensation because of
the high-profile nature of the case in New Zealand.
Justice Binnie interviewed Mr Bain and other people,
including the police, whom the defence accused of planting a
spectacle lens, a key piece of evidence in the prosecution
case.
His report is confidential, but The New Zealand Herald
reported in September it had learned Justice Binnie believes
that on the balance of probabilities, Mr Bain is innocent of
murdering his parents, brother and two sisters.
He could be looking at a payout of close to $2 million for
non-pecuniary losses such as liberty and emotional harm, and
more for pecuniary losses such as loss of livelihood, in
compensation for the almost 13 years he spent in prison.
Those figures are based on the formula the Cabinet used for
non-pecuniary losses in its last compensation payment, made
in April last year.
But compensation is by no means certain and the Government
has no obligation to pay it.
Mr Bain was described as "penniless" by his lawyer, Michael
Reed QC, when the application for compensation was lodged in
March 2010.
Most legal experts at the time thought Mr Bain would find it
difficult to meet the criteria for a compensation payment.
The Cabinet faces a difficult decision over Justice Binnie's
findings because of the polarised views about Mr Bain's
innocence and because his case falls outside the 1998
guidelines for compensation for wrongful conviction and
imprisonment.
Under those guidelines, eligible claimants must have had a
pardon or had their convictions quashed on appeal without the
order of a retrial.
But it has the discretion to pay compensation if it is
convinced there are "extraordinary circumstances".
And there is a precedent for compensation in a case that
falls outside the guidelines.
Last year, Aaron Farmer was paid $351,575 by the Government
and received a statement of innocence and an apology for his
conviction in 2005 for rape. He served two years and three
months of an eight-year sentence.
The Court of Appeal quashed his conviction in 2007 and
ordered a retrial, but the retrial never went ahead after DNA
testing before it excluded Mr Farmer as being the offender.
Former New Zealand High Court judge Robert Fisher conducted
the inquiry for the Government into that case.
For his 819 days in prison, Mr Farmer received $336,575 (or
$410 a day) and an additional $15,000 for "improper conduct"
by a police detective when interviewing him.
If a similar formula were applied to 13 years' imprisonment,
the figure would be $1.94 million, with possible add-ons for
pecuniary loss and improper conduct by the authorities.
- Audrey Young and Newstalk ZB
